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Inconveniences to Some, Matter of Civil Rights to Others
By Ashraf Nubani
24/09/2001
Have a relative or a friend who is a permanent resident alien? A commonly heard statement among immigrants is, "Oh, I'm safe; the green card is just like being a citizen, except that I can't vote." Think again.
Call family or friends overseas a lot? A commonly heard statement is, "Oh, I'm safe; there's absolutely no reason why anyone would be tapping my phone lines or intercepting my emails; I haven't even got a parking ticket on my record." Think again.
Think some things were moved around in your house while you were gone? A commonly heard statement is, "Oh, I don't know why anyone would want to search my house; besides, they would have to notify me of a search anyway." Think again.
As the investigation of the worst attack on American soil continues, the Bush Administration seems relentless in its pursuit of anyone suspected of having links with the perpetrators of the attack on September 11, 2001. In addition to looking for co-conspirators in the attacks, the Administration, obviously embarrassed because its top intelligence sources could not predict the attack, is also stepping up its efforts to counter any future attacks.
In the midst of this sprawling investigation and the counter-terrorism legislation that is being proposed, some members of Congress and the American Civil Liberties Union (ACLU) are gearing up for a tough and sensitive battle. Why sensitive? At a time when the thirst for revenge is high, the American people are becoming more vigilant and might actually agree to give up certain freedoms without realizing the long-term consequences. To oppose the Administration's plan might be at the risk of being labeled "unpatriotic" or "unbalanced" in terms of an appropriate response.
Yet, even a brief analysis of the proposed legislation points to a potential threat to our basic constitutional rights. Three main areas as outlined by the ACLU (ACLU, 9/20/01), which the proposed legislation affects, are immigration, wiretapping and surveillance methods, and criminal justice.
Immigration
Attorney General John Ashcroft and the Justice Department have proposed some rather rushed legislation that would give them an almost
carte blanche authority over immigration matters pertaining to persons suspected of involvement with terrorism in any manner whatsoever.
Current law requires that the courts be presented with evidence in detention and deportation proceedings. The proposed legislation calls for the Attorney General to be authorized to detain and deport immigrants without presenting any evidence to a court, no matter how vague and unspecified the threats are to national security.
Current law allows for detention of immigrants for a period of time without charging them. In what seem to be measures most antithetical to principles of freedom laid out in the constitution, the proposed legislation calls for unilateral and indefinite administrative detention of non-citizens during a national emergency based solely on the authority of the Attorney General.
President Bush declared a national emergency during the week following the attacks. In addition, in non-national emergency cases, the Justice Department is proposing to detain non-citizens for up to 48 hours without charging them with a crime.
Chairman of the Senate Judiciary Committee, Senator Patrick J. Leahy has been among the most vocal opponents of the Justice Department proposals. Garnering support from both sides of the aisle, Leahy, a Democrat, noted that indefinite detention "...could be akin to the abrogation of the rights of Japanese- Americans during World War II" if law enforcement authorities were allowed to "take some Arab-looking person and hold him for as long as they want while they investigate," (NYT, 9/20/01).
In the same article, Leahy also showed that he was not inflexible to some aspects of the proposals. "On the immigration question, if we change from 24 to 48 hours before deciding whether to charge someone, well, I can understand that. But I don't think we need to talk about indefinite detention," (NYT, 9/20/01).
Just as troubling is a proposal to allow for the deportation of non-citizens for having provided support in the past through legal means to organizations, which are now being singled out with links to terrorism. On its website (www.aclu.org), the ACLU provides this example to clarify the far-reaching implications of this proposal. It states that, "under this law, a permanent resident alien could be deported today for making a donation to the African National Congress because that group in the past engaged in military as well as nonviolent opposition to apartheid. And a permanent resident could be deported for having provided such aid in the 1980's when thousands of Americans were doing the same thing and when it was plainly lawful to do so."
Wiretapping and Surveillance Methods
One of the joys of living in a democracy is the right to carry on private communications either through modern day favorites like the telephone and email. Though few of us might realize it, the ACLU notes that, "the FBI already has broad authority to monitor telephone and Internet communications." So what's the worry? Existing law allows the FBI and other law enforcement officials the broad authority when dealing with persons suspected of terrorism or links to terrorists. According to the ACLU, "most of the changes [the FBI] proposes now would apply not just to surveillance of terrorists, but to all surveillance in the United States." Perhaps the greatest change is not so much in the implementation of the wiretapping or the intelligence surveillance. The knee-jerk reaction from the Justice Department seems to have actually triggered a shift in philosophy according to the ACLU, minimizing "the role of a judge in ensuring that law enforcement wiretapping is conducted legally and with proper justification."
An even greater question to be asked concerns the potential increase in abuse by the FBI of their authority to intercept telephone and email communication without showing probable cause of crime. Existing law provides that under the Foreign Intelligence Surveillance Act (FISA), the FBI can use wiretaps to gather foreign intelligence. Not much information is available on the FBI's use of FISA surveillance except that the number of FISA wiretaps are greater than those for the total number of domestic criminal investigations. Unlike the rather stringent standards that must be met to obtain wiretaps in a criminal investigation, the ACLU notes that FISA surveillance "does not contain many of the same checks and balances that govern wiretaps for criminal purposes."
To make matters worse, the FBI is seeking to extend FISA surveillance authority in cases where the primary purpose is not to gather foreign surveillance, but rather, during a criminal investigation. Additional provisions of the proposed legislation would allow law enforcement officials to use only administrative subpoenas to access business records and to extend their authority of reviewing personal communication far beyond only using telephone company records; they would now also be allowed to include Internet communication, such as one's emails and websites visited.
Criminal Justice
It is unimaginable that the government would want to search your house without notifying you. Well, it is possible in exceptional cases where law enforcement officials believe you could tamper with, remove, or destroy critical evidence if you were to be notified. Under those circumstances, the courts usually grant permission to delay notification. The emphasis here should be on "delay," implying that you will be notified in due time, just not in advance of the search. To be informed of a search and protected from unfair seizure are both basic constitutional rights. Not so if the Administration has its way of wanting authority to request "secret searches" in every criminal offense case. Similarly, the proposed legislation would allow the government the right to seize "a person's home, car or any other asset before proving that the person had committed any crime."
As the initial impact of the tragedy gives way to calm, much of the bipartisanship that has been a uniting factor for all Americans will give way to the usual party-line bickering. Over matters of basic constitutional rights that will be sharply curtailed according to the proposed legislation, however, the Bush Administration seems headed for a conflict with members of both sides of the aisle. Representative Bob Barr, a conservative Georgia Republican, has expressed concern about the rushed nature of the new proposals as well as the broad authority of the existing law. Barr has said that, "if we are faced with a true emergency, the government has plenty of authority to do what needs to be done" (NYT, 9/20/01).
In the days to come, civil liberties and privacy groups will need to step up the pressure on legislators to slow down the review process so that the proposed legislation can be examined in a calm manner rather than by a Congress and a people too thirsty for immediate revenge. Congress will have to ensure that the Justice Department does not infringe on personal liberties while overstepping the judicial review process.
Ashraf Nubani is a civil rights attorney based in the Greater Washington Metropolitan Area.
Sources:
American Civil Liberties Union, "ACLU Says Congress Should Treat Administration Proposal Carefully; Says Many Provisions Go Far Beyond Anti-Terrorism Needs."
The New York Times, "Senate Democrat Proposes Alternative Antiterrorism Plan, By Neil A. Lewis and Philip Shenon, 9/20/01.
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